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Pandora makes it easy for you to find your favorite

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by selecting any song or album, and we'll make you

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a personalized station for free. Download

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on the Apple App Store or Google Play, and enjoy

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the soundtrack to your life.

0:15

Mr. Chief Justice, please

0:17

report. It's

0:19

an old joke, but when a man argues

0:22

against two beautiful ladies like

0:24

this, they're going to have the last

0:25

word. She

0:28

spoke, not elegantly, but

0:30

with unmistakable clarity. She

0:33

said, I ask no

0:36

favor for my sex. All

0:39

I ask of our brethren

0:40

is that they take their feet

0:43

off our necks.

0:58

Hello, and welcome to a special episode of Strict

1:00

Scrutiny, your podcast about the Supreme Court

1:02

and the legal culture that surrounds it. We're your

1:04

hosts. I'm Leah Littman.

1:06

I'm Kate Shaw. I'm Melissa Murray. It's

1:08

been a little over a year since the court overruled Roe

1:10

versus Wade and Planned Parenthood versus Casey.

1:13

We did a Dobbs retrospective last summer, just

1:15

a few months out from the decision, but we also

1:17

wanted to mark this just over one year anniversary

1:20

since the decision by looking back on some of

1:22

what has happened since then. It sometimes

1:24

feels like the country and people have

1:27

moved past the decision, or at least

1:29

to overlook and minimize it in conversations

1:31

about the Supreme Court, like all of

1:33

the moderate decision coverage we saw toward

1:35

the end of this last term, and

1:37

all of that felt

1:38

profoundly misguided and actually pretty

1:40

dangerous to us. So we wanted

1:43

to look back on the last

1:45

year since Dobbs and revisit

1:47

some of what the different opinions in Dobbs

1:50

said in light of what has happened over the

1:52

last year. We did want to let

1:54

you know up front there will be discussions of

1:56

pregnancy loss, healthcare emergencies,

1:59

and other topics. in this episode, and

2:01

on top of that, this episode is very long.

2:06

We are not going to apologize for that

2:08

because there's a lot to say. This decision

2:10

has had a lot of really profound consequences

2:13

on people's lives. This country,

2:15

our democracy, and we wanted

2:17

to try and cover as much as we could. So

2:19

here's what we're going to do. We've lined

2:22

up some very special guests to do some cosplaying

2:24

with us this episode. Some very

2:26

talented voice actors will be playing the parts

2:29

of Samuel

2:29

Alito, Clarence Thomas, Brett

2:32

Kavanaugh, and the Joint Dissenters.

2:34

They'll be reading portions of their opinions in

2:36

Dobbs, and then we will all reflect on

2:39

how these opinions and statements and reasoning

2:41

in them have aged in the year since.

2:44

So first up is Samuel

2:46

Alito.

2:48

Here, to take one for the team,

2:51

someone who is here for his first appearance

2:53

on Strix scrutiny, but I know it won't be his last because

2:56

this individual has an LSAT score

2:59

that would easily mark him

3:01

for admission at the most competitive

3:03

law schools in the nation, I'll have

3:05

you know. And so with

3:08

no further ado, we welcome to

3:10

Strix scrutiny for the first time, excluding crossover

3:13

podcasts,

3:14

the incomparable John Lovett. Welcome,

3:16

John. Thank you. Thank you. What

3:19

an introduction. If you'd have easily got me into the nation's

3:21

best law schools, I'd be a lawyer. That's

3:25

because you've decided not to. That's

3:27

because you've decided not to. Would you be co-conspirator one,

3:30

two, three, four, or five? Oh,

3:32

you know, it's interesting. As you move down the

3:33

co-conspirator list, you know, there's been all

3:35

this speculation about where

3:38

some of them are, are they trying to get them to flip? That

3:41

thing is written like Jack Smith wants to line

3:43

those guys up against a wall.

3:45

Can I say that? I

3:48

don't know what you mean. Sure. I

3:50

did. Anyway, as

3:53

listeners will note, we needed someone

3:55

who had both the range to play

3:57

Samuel Alito, aka Justice Betty

3:59

Free.

3:59

while also not making

4:02

our listeners want to retch and

4:04

tear their hair out. So congratulations,

4:06

John. You are the lucky one,

4:08

the only one that we could think of to

4:10

bring the appropriate heft to this role.

4:13

So with that, I'm going to ask

4:15

you to read the first line from

4:17

the majority opinion.

4:20

So we discussed this whether or not to do it in a voice.

4:22

I'm thinking like, what is like the Sam Alito

4:24

energy? And it's the energy of

4:26

a landlord who's furious that your

4:28

child drew with chalk on the sidewalk.

4:31

You

4:31

know, I like

4:33

that eviction energy. Yes, the controlling.

4:36

Yeah. And wants to evict you for it. The

4:38

controlling is that I'm going to miss him now. That's it.

4:40

That's it. This is sort of where he's at. The controlling opinion

4:42

in Casey perceived a more intangible

4:44

form of reliance. It wrote that people had

4:47

organized intimate relationships and made

4:49

choices that define their views of themselves

4:51

and their places in society. Alliance

4:53

on the availability of abortion in the event

4:55

that contraception should fail and the

4:57

ability of women to participate equally

5:00

in the economic and social life of the nation

5:02

has been facilitated by their ability

5:04

to control their reproductive lives. But

5:06

this court is ill-equipped to assess

5:09

generalized assertions about the national

5:11

psyche

5:11

and reproductive planning

5:13

could take virtually immediate account of any sudden

5:16

restoration of state authority to

5:18

ban abortions.

5:19

If you were really Sam Alito, you would

5:21

be demanding applause for that line right now. Because

5:24

in addition to the like a landlord evicting

5:26

you energy, it's the why am

5:28

I not being celebrated for it?

5:30

I have delivered an amazing

5:32

bit of argument and not any not a single

5:34

member of the bar is applauding. No

5:36

one from the bar is coming to the defense

5:39

of Sam Alito.

5:41

Where is the where are they?

5:45

Where are my many supporters? This

5:47

is the role of a lifetime for you. I

5:49

mean, I know.

5:51

No, I didn't spend 40 years not

5:53

making a friend to be treated this way. OK,

5:59

where to start? Again,

6:02

ill-equipped to assess generalized assertions

6:05

about the national psyche, how has that fared

6:07

over the course of this year?

6:10

You just see throughout this opinion how much

6:12

they want to be pundits and how bad they

6:14

are. You claim you don't want to be a

6:16

pundit, but what coming through this decision throughout

6:19

it is this idea that, oh, we're taking

6:21

this contentious issue off the table. We

6:24

can't evaluate the ramifications of it, nor

6:26

should it be our job. And of course, now we're living in the wake

6:29

of the decision and the country is in chaos

6:33

over it, and there's been so much harm.

6:35

And they were told that this harm would happen.

6:37

So here's a clip from Solicitor General Elizabeth

6:39

Preylogger, who articulated the

6:41

reliance interests that so many Americans had

6:44

on Roe and Casey. There are

6:46

multiple reliance interests here, as I think Casey

6:48

correctly recognized. Casey pointed

6:50

to the individual reliance of women and

6:52

their partners who had been able to organize

6:55

their lives and make important life decisions against

6:57

the backdrop of having control over this incredibly

6:59

consequential decision whether to have a child.

7:02

And people make decisions in reliance on having

7:04

that kind

7:05

of reproductive control, decisions

7:07

about where to live, what relationships

7:09

to enter into, what investments to make

7:11

in their jobs and careers. And so I think on a very

7:13

individual level, there has been profound

7:16

reliance. And it's certainly the case that

7:18

not every woman in America has needed to

7:20

exercise this right or has wanted to, but

7:22

one in four American women have had an abortion.

7:25

And for those women, the right secured by Roe and Casey

7:28

has been critical in ensuring that they can control

7:30

their bodies and control their lives. And

7:32

then I think there's a second dimension to it that Casey

7:34

also properly recognized, and that's the societal

7:37

dimension. That's the understanding

7:40

of our society, even though this has been a controversial

7:42

decision, that this is a liberty interest

7:44

of women. It's the case that not everyone

7:47

agrees with Roe versus Wade, but just about every

7:49

person in America knows what this

7:51

court held. They know how the court has defined

7:54

this concept of liberty for women and what control

7:56

they will have in the situation of an unplanned pregnancy.

7:59

And for the court to... reverse course now, I think

8:01

would run counter to that societal

8:04

reliance and the very concept we have

8:06

of what equality is guaranteed to women in this

8:08

country.

8:09

It's just the contemptuousness that

8:11

Alito brought to talking about

8:14

this notion that people do depend and have

8:16

depended for now several generations on the availability

8:18

of abortion should have become necessary.

8:21

And Alito is like, those are assertions

8:23

about the national psyche

8:25

and also makes the ridiculous claim

8:28

that reproductive planning could immediately take

8:30

account of any sudden restoration of a state

8:32

authority to ban abortions. Contraception doesn't

8:34

stop failing because states

8:37

ban abortions. It's also pregnancy complications. Pregnancy don't

8:39

stop becoming nonviable because

8:41

states ban abortion. It's just the obtuseness

8:44

of this claim that everyone

8:46

can just respond accordingly so there will be no harm,

8:48

no foul is just a year

8:50

out still so infuriating.

8:53

It's not a person's job to immediately

8:55

reorganize how they think about what medical

8:57

care is available in a hospital based on what the

8:59

Supreme Court said. There are probably a

9:01

fair number of people out there that discovered

9:04

just how bad this decision was when

9:06

they were in an emergency and their life was on the line

9:08

and they're sitting in a hospital parking lot waiting for a lawyer

9:11

to call a doctor to find out if it's okay for them to go

9:13

inside. This idea that you can like

9:15

use logic to dance on the end of a pin

9:18

to find this rationale for some

9:20

of the most ridiculous interpretations

9:23

of the document, of the law, of

9:25

human rights, like that is what he does. That

9:27

is what he lives to do. That's what he's been training to do and

9:29

you don't need to be a lawyer to see how arrogant

9:33

and dangerous it is,

9:35

if I could say. But he's so funny.

9:40

Also charming. I'm looking, I'm in

9:42

the market for a mean Scalia without a joke.

9:45

Do you have anything like that? Is there anything in the, do you

9:47

have anything at Yale that I could, is there anything on the Yale store

9:49

that I could get?

9:50

Also like a dollar intellect and

9:53

pen, right? We could sort of add those to the list.

9:55

For sure. All right. So

9:57

maybe we'll transition to the next quote when you're ready.

10:00

Our decision returns the issue of abortion

10:02

to those legislative bodies, and it allows women

10:17

on both sides of the abortion issue to seek

10:19

to affect the legislative process by influencing

10:21

public opinion, lobbying legislators,

10:24

and voting and running for office. Women

10:26

are not without electoral and political

10:29

power.

10:30

Unfortunately. Right.

10:32

Obviously, Sam is sad about that. And on some

10:34

level, this statement has

10:36

held up in the sense that, you know, abortion

10:39

measures are undefeated in state ballot

10:41

initiatives since Dobbs, you know, including

10:43

in my home state in Michigan, Kansas,

10:45

California, Vermont, Kentucky.

10:48

It also mattered significantly in

10:51

judicial elections in Wisconsin,

10:53

you know, for the race to control,

10:55

you know, that state Supreme Court. On

10:57

the other hand, this seems

11:00

to gloss

11:01

over some of the things this court,

11:03

as well as the conservative legal movement more

11:05

generally, have been doing

11:08

to the democratic process that

11:10

make it harder for women

11:13

and people more generally to

11:15

actually decide to protect the right

11:18

to reproductive freedom. And Kate and

11:20

Melissa, I know you've written about this.

11:22

This court has done more than perhaps any other

11:24

institution to distort the landscape of

11:27

democracy through its own decisions, blessing

11:29

partisan gerrymandering, making it harder

11:32

for individuals to challenge laws that

11:34

try to suppress the vote, particularly among

11:36

certain communities. We've also

11:38

seen measures to limit the force of

11:40

direct democracy. So right now, you know, Ohio,

11:43

there is a very active effort to

11:45

thwart the opportunity that Ohioans

11:47

will have to use direct democracy measures

11:50

to protect themselves and to protect abortion

11:52

rights in that

11:52

state's constitution. So it seems

11:54

like democracy was sort of

11:56

good here. He was kind

11:59

of into it. The rest of the

12:01

party is not quite sure how

12:03

democracy curious they want to be and it really

12:05

kind of depends

12:06

on what the outcome Will look like there's

12:08

a famous moment in the Simpsons where

12:11

principal Skinner is caught on an open mic He's

12:14

he's in an argument and all of a sudden He's an assembly and

12:16

he accidentally says to the mic We both know

12:18

these children have no futures and then

12:21

the children all gasp and he turns to the audience

12:23

of children He goes prove me wrong kids

12:25

prove me wrong. And that's what I was reminded

12:27

of when I saw this It's like look look

12:30

are you are you full people little ladies not

12:32

to buy my account? But hey good luck out there

12:35

You know use those use those bodies

12:37

that belong to me to

12:38

figure out how to make some change

12:40

and stop me from what I've been Trying to do, you

12:42

know, maybe we were giving you wrong notes John

12:45

when we suggested like a landlord trying

12:47

to evict you maybe the right energy to

12:49

channel all along was principal Skinner

12:52

Why don't we take a principal Skinner approach to

12:54

the next line? Let's let's see how that one plays out

12:56

with a Skinner s vibe

12:57

No The

12:59

argument in Planned Parenthood v. Casey was cast

13:01

in different terms But stated simply it was essentially

13:04

as follows the American people's belief in

13:06

the rule of law would be shaken if they lost Respect

13:08

for this court as an institution that decides important

13:11

cases based on principle not social

13:13

and political pressures There is a special danger

13:15

that the public will

13:16

perceive a decision as having been made for unprincipled

13:18

reasons when the court overrules a controversial

13:21

Watershed decision such as Roe this

13:23

analysis starts out on the right foot, but ultimately

13:26

veers off course thoughts

13:27

You know,

13:29

you're all the lawyers. Is that what it says? Do

13:32

you think the public perceives that this

13:35

was a political decision? I mean like I'm gonna

13:37

be fully straight up about this like it

13:40

seems really weird to me that Roe

13:42

and Casey Withstood a million

13:45

different challenges over the course of

13:47

the last 50 years Okay, not a million but

13:49

a lot and it survived each and every

13:51

time and then suddenly Ruth Bader Ginsburg

13:54

dies in September 2020 Amy

13:56

Coney Barrett gets installed on the court

13:58

in October 2020 now Now we have a 6 to 3

14:00

conservative supermajority. And all of

14:03

a sudden, Mississippi has

14:05

changed its request before the court.

14:07

Before they were just like, we have a very modest ask. Tell

14:09

us about viability. Now they're like, you know what?

14:12

Just overrule Roe and Casey. And

14:14

the court does it. How can it not

14:16

be political? How can it not be about

14:19

the changing personnel of this court?

14:21

How is it about principle when

14:24

in

14:25

the past, we never had anything

14:27

like this, even though these questions had repeatedly

14:29

come before the court? Well, also they said it

14:31

was about personnel and politics, like

14:33

in the debates leading up to the 2016 election,

14:36

Donald Trump was literally asked about Roe

14:38

versus Wade. And what did he say? Well, if

14:40

that would happen, because I am pro-life

14:43

and I will be appointing pro-life judges,

14:45

I would think that that will go back to the individual

14:47

states. But I'm asking you specifically,

14:50

would you like to? If they overturned it, it'll go back to the

14:52

states. But what I'm asking you, sir, is

14:54

do you want to see the court overturned?

14:56

You've just said you want to see the court protect the

14:58

Second Amendment. Do you want to see the court overturned

15:01

Roe v. Wade? Well, if we put another two

15:03

or perhaps three justices on, that's really

15:05

what's going to be had. That will happen.

15:08

And that'll happen automatically, in my

15:10

opinion, because I am putting pro-life justices

15:13

on the court. He said it'll happen automatically.

15:15

And I was like, well, no, not exactly. There's

15:17

some steps around it. But then I was like, oh, no, he

15:19

was right. Actually, it did kind of happen just

15:22

automatically. He's really truthful about a lot of things,

15:24

Roe. The fact that he's getting indicted,

15:27

I mean, he's good on some of these things. There

15:28

is just kind of an elit-o way

15:30

that he's sort of flipping the logic on its

15:33

head, because there

15:35

is the kind of elit-o grievance politics

15:37

that's seeping in here, which is saying, if

15:40

you're telling me that there would be incredible

15:43

negative political ramifications because

15:46

of the monumental unpopularity

15:48

of this decision, well, you've only emboldened me

15:50

and forced my hand. Because if I were to allow

15:52

the fact that this nation would

15:55

revile this choice,

15:57

well, then don't I have no choice but on principle

15:59

to do? do it anyway, thus to prove that the Supreme

16:02

Court is beyond politics. Spoken

16:04

like a guy that was rejected for the prom. That's

16:07

like rejected for the prom. What you all made me do. Yeah.

16:10

And the

16:10

more political pressure I feel, the

16:13

more sure I am that I have that this is

16:15

the right call, because that shows you just

16:17

how righteous a court we have,

16:20

because this group of people were

16:22

put in place to defy the public

16:24

will, but in this anti-majoritarian

16:27

way. And so good for us, the more you

16:29

hate,

16:30

the better I feel. Think about

16:32

it hard. And

16:35

also honestly, they did, I think, in the

16:37

Casey court, which we've been talking about, they did

16:39

genuinely care about the institution of the court

16:42

and its perceived legitimacy. And that's why,

16:44

the language that again,

16:46

Alito is disparaging from Casey

16:47

was the justices surprising

16:50

a lot of people, defying a lot of expectations and upholding

16:53

in this opinion written by some Republican appointees,

16:56

the kind of core of Roe by saying,

16:58

like, if guys, if we

17:00

reverse course now, just after this personnel

17:02

shift, it's going to be pretty obvious that we're a political

17:04

body and you know what? We're not, we don't want to be. And Sam

17:06

Alito was just like fully kind of ran

17:09

right into that threat. And like you said, sort

17:11

of actually inverted its logic

17:13

and said, that's precisely

17:13

the reason we have to move forward. I'm

17:16

curious what you all think about the

17:18

way Amy Coney Barrett

17:20

talked about this during her confirmation,

17:22

because what was striking to me is just sort

17:24

of an observer and political

17:28

pundit who didn't go to law school

17:30

is she took these great pains to

17:33

basically avoid saying

17:35

that she didn't respect precedent

17:38

because what she, the way she said it was, well,

17:40

if a precedent truly is important,

17:43

it won't come to me. Whereas

17:46

Alito is saying, I don't care about, I don't

17:48

care about precedent at all. That doesn't factor in. She

17:51

actually had one of the more interesting approaches

17:53

to answering questions about Roe

17:56

and Casey. And again,

17:58

everyone should understand whenever they talk.

17:59

about precedent in the context

18:02

of confirmations. They were shadow boxing

18:04

with Roe and Casey. They weren't talking about anything

18:06

else. That's what they were talking about. And she was

18:08

just sort of like, you know, when I think it was Dianne

18:11

Feinstein who asked her, you know, do you think that

18:13

these decisions are precedent or super

18:15

precedents and precedents on precedents

18:17

or whatever. And she was like, you know, if it's

18:19

a super precedent, then it's been settled

18:22

and it won't come before me. And that's

18:24

why it's a super precedent. If it does come before me, then

18:26

it's not a super precedent that I'm obliged

18:28

to

18:29

offer a real deference to. Didn't she even

18:31

go further and basically say, I remember being really

18:33

nasty and basically saying, and I'm getting a lot of

18:35

questions from you about this case,

18:38

which makes me think it's not a super precedent. It was like

18:40

in some ways, some of those like really sharp exchanges,

18:42

I think made her at least marginally

18:46

less dishonest than like Kavanaugh

18:48

and Gorsuch were because she kind of let her contempt

18:50

show for Roe. And

18:53

you know, that's, that's how she felt. And she

18:55

didn't really work very hard. She

18:57

didn't have to. I mean, all she needed was a simple

18:59

majority. Like it was pretty much in the

19:02

bag for her. I mean, the Democrats were in no position

19:04

to beat her down. She was just basically on cruise control

19:06

at that point.

19:08

And then Senator Feinstein obviously asked that hard follow up

19:10

question about whether she supported France

19:12

in their fight against the Kaiser. Which obviously

19:16

avoided answering.

19:17

John,

19:20

thank you so much for coming to represent

19:22

the elite strike force legal team that

19:25

was the Dobbs majority, the Mojo

19:27

dojo Casa house court and everything

19:30

we have come to

19:30

expect from Samuel Alito. So thank

19:32

you. Thank you for having me.

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We'll

21:52

now shift to that Thomas concurrence and

21:54

joining us for this segment, isgrowthplanet.com,

21:58

associated with GE Beauty particularly. segment

22:00

to play Clarence Thomas, but also to

22:02

join our discussion about the Thomas concurrence

22:05

is strict scrutiny. Superguests and author

22:07

of the best-selling book, Allow Me to Retort

22:09

a Black Man's Guide to the Constitution

22:11

and also the justice correspondent

22:14

at the nation. And we as preferred

22:16

pick for the next vacancy on the U.S. Court

22:18

of Appeals for the Fifth Circuit, none

22:20

other than Ellie Mustal. Welcome

22:22

Ellie.

22:22

Thank you so much for having me. Let's talk about

22:25

jerkface. So

22:27

let's indeed get right to it. This is going to

22:29

be a look back on the concurrence heard around

22:31

the world. So want to kick

22:33

us off, Ellie, with that first line we're going to reexamine?

22:37

For that reason, in future cases, we

22:39

should reconsider all of this

22:41

court's substantive due process precedents, including

22:45

Griswold, Lawrence and Obergefell,

22:48

because any substantive due process

22:50

decision is demonstrably

22:52

erroneous. Okay, pause. Okay,

22:54

pause. Before we get to the substance, I didn't know

22:56

you had that Thomas baritone

22:59

like that. You really just channeled the voice.

23:01

Can you laugh? Like your jocua laugh? Like

23:03

for the relevant? Exactly. The evil

23:06

laugh. So good. See,

23:08

now our listeners get to experience

23:10

it. Stroke a hairless

23:13

cat. Stroke a hairless cat. And

23:17

now to the substance. Speaking

23:19

of demonstrably erroneous, right? The

23:23

thing that always stands out to me about

23:25

that line, and I think it stood out to others,

23:28

is that he lists three cases

23:31

that he considers to be demonstrably

23:33

erroneous applications of substantive

23:36

due process. Griswold, which deals

23:38

with contraception, Lawrence, which deals

23:40

with gay rights, and Obergefell,

23:43

which deals with same-sex marriage.

23:44

But what's the fourth one? What's

23:47

the one he leaves out? I

23:49

know, I know, I know, teacher, I know. And

23:53

the one, the substantive due process decision that he

23:56

leaves out is Loving v.

23:58

Virginia, the one.

23:59

that allows for interracial

24:02

marriages. Did he forget about

24:04

it? Did his clerks not

24:07

remember that case? No.

24:10

Mark Meadows wishes he could forget about it. Because

24:14

loving the Virginia is the interracial marriage education,

24:16

he happens to be interracially married.

24:18

Not that there's anything wrong with that, obviously. But

24:20

the whole reason why this line stings

24:24

so sour to me is that

24:26

it shows that he is not simply

24:28

applying his own

24:31

radical ideology fairly across

24:33

all cases. If Thomas could

24:36

push a baby out of his urethra,

24:39

would he have mentioned Biswall? You

24:42

probably would. OK, that's not burned into my brain.

24:47

So Ellie, let me just intervene

24:49

here to perhaps offer a devil's advocate,

24:52

and maybe a defense of Clarence Thomas. Good luck. I'm

24:54

not trying to defend him. So some

24:57

would argue there perhaps are

25:00

statutory limitations that

25:02

would prohibit states from

25:05

ending interracial marriage or not recognizing

25:08

interracial marriages. And

25:10

perhaps that's the reason why he didn't

25:12

include loving.

25:13

The point here is that there

25:15

were also statutory positions that applied

25:17

in Lawrence. There were also equal protection provisions

25:20

that applied in Lawrence. And yet he still

25:22

included Lawrence. He reduces

25:25

those three cases to simply

25:27

a substantive due process analysis,

25:31

which is not the only analysis

25:33

that was used in those three cases, in the

25:35

same way as that it wasn't the only analysis that

25:38

was used in Roe v. Wade, which

25:40

is what he's attacking fundamentally in this concurrence.

25:42

So if I could just add one additional point

25:45

here, which is even if there are statutory

25:47

protections for interracial marriage,

25:49

that would still mean loving versus

25:51

Virginia should be overruled to the

25:53

extent that it holds that the Constitution

25:56

guarantees a right to interracial

25:59

marriage.

25:59

marriage or doesn't permit states

26:02

to write statutes prohibiting

26:04

interracial marriages. And then just to like

26:06

quickly flesh out two things is like to

26:08

the extent an alternative explanation

26:10

is well, the equal protection clause could explain loving.

26:13

It's not clear why that would explain loving, but

26:15

not Obergefell, since

26:18

that distinction might also violate the equal protection

26:20

clause. And then just to flesh

26:22

out the idea that there might be other statutory protections

26:24

that could explain the results in Obergefell

26:27

or Lawrence, like there are federal

26:29

civil rights laws that also prohibit

26:31

discrimination on the basis of sex

26:33

in a variety of arenas. And

26:35

given the Supreme Court's holding in Bostock,

26:38

that discrimination on the basis of sex includes

26:40

discrimination on the basis of sexual

26:43

orientation. It's also not clear that that

26:45

rationale distinguishes between those cases either.

26:47

And in terms of

26:49

the outcomes that we're already starting

26:51

to see follow from his clarion

26:54

call. So we've talked about the conspicuous

26:56

omissions

26:57

from his concurrence, but of course he highlights

26:59

Griswold and Lawrence and Obergefell. And

27:02

he's talking to, I think, a few different audiences

27:04

when he says, you know, we should reconsider these

27:06

cases. He's talking of course to his colleagues, but

27:08

he's also talking to lower court judges. He's

27:11

talking to litigants. And it kind of feels

27:13

like he's also talking just more broadly

27:15

to individuals

27:15

who are part of, you

27:17

know, the implementation of the constitution

27:19

and like help shape its meaning. And

27:22

I think he is basically saying these

27:24

precedents are up for grabs and you can comport

27:27

yourselves accordingly. We're

27:29

a year out and I think we

27:31

are seeing seeds of, I think as a

27:33

result of a combination of his sowing

27:35

real doubt about the future durability of these

27:37

precedents, but also 303 Creative,

27:39

which we talked about at the end of last term, a

27:42

great deal. People starting to

27:44

basically say, well, public accommodations

27:46

laws may not be able to be

27:47

enforced. If we're talking about same sex marriage

27:49

or same sex couples, the constitutional imperative

27:51

of marriage equality may actually be in some

27:53

doubt. So like, I'm just going to act on

27:56

what I think the constitution may be understood

27:58

to mean five or 10 years.

27:59

out and refuse hair

28:02

salon services, refuse

28:04

maybe marriage licenses. I mean, I don't know if you guys have been

28:06

following this, but Kim Davis is like set for trial

28:09

in September for her 2015 refusal

28:12

to issue marriage licenses to same sex couples, even post

28:14

Obergefell. And I am sure

28:16

swirling around that jury trial is going

28:19

to be this set of open questions that Thomas

28:21

has- She's already talked about it. Has thrown,

28:24

but I mean even like in front of the jury, like

28:26

I just think that all of this is really changing

28:28

the constitutional landscape,

28:29

even though it is obviously an opinion for one

28:31

person, it is already reverberating and I think it's

28:33

going to continue to reverberate all the more. He's

28:36

talking to the Fifth Circuit. What

28:38

he's doing- Your future judicial home. Right?

28:42

He's talking to the Fifth Circuit and he's doing

28:44

that because he knows that people

28:47

on his side of the aisle

28:49

will get out in front of the Supreme Court, are

28:51

willing to get out in front of the Supreme Court. Like

28:54

people forget they overturned

28:56

abortion in Texas before Dobbs, right?

28:58

They just straight up with their Jonathan

29:01

Mitchell bounty hunter plan, they

29:03

straight up overturned Roe v. Wade

29:05

in Texas before the Supreme Court

29:07

got around to it in Dobbs. Everybody

29:10

was like, cool.

29:11

All right, we'll just roll with that

29:13

then. I for one, when I read this

29:15

line, was actually really

29:17

happy, not because I want to see any of

29:19

these precedents threatened or

29:22

in jeopardy, but because we

29:24

had been saying this all along, like

29:26

in the run up to Dobbs, everyone

29:29

had been talking about what else could happen,

29:31

what else could fall. I think we were saying

29:34

that all of the substantive due process

29:36

precedents were imperiled if Roe

29:38

fell because they all rested on the same

29:41

foundation. There were so many people

29:43

who were like, you witches need to get

29:45

back to your cauldrons and stop talking

29:47

crazy. This actually,

29:49

I think, made it clear that we were not

29:51

nuts, like that this was definitely happening.

29:54

So for that reason and only that reason, I

29:57

said for the first time ever, thank God

29:59

for clarifying.

29:59

So maybe we can go

30:02

on to the next line, because interestingly,

30:05

while Justice Thomas seemed to want

30:07

to reconsider other

30:09

substantive due process decisions because

30:11

they were inextricably related

30:14

to Roe versus Wade and Planned Parenthood versus Casey, he

30:17

also had some other thoughts about what the majority

30:19

opinion did or didn't mean as to those other

30:21

precedents. So, Justice Thomas, take it away.

30:26

Thus, I agree that nothing

30:28

in this court's opinion should be

30:31

understood to cast doubt on the precedents

30:33

that do not concern abortion.

30:37

So, here's the

30:39

fun thing about that line. It's

30:41

not his line. He's quoting the

30:44

majority opinion. It's like somebody comes

30:46

into your house, shoots your dog,

30:48

leaves the cat alive. What Thomas

30:51

is saying, thus, I agree, the cat

30:53

is still alive. He ain't saying not gonna

30:55

shoot the cat next, right?

30:57

He's not saying that the cat is sick. He's

31:00

saying that he agrees with the factual

31:02

situation on the ground that the cat happens

31:04

to be still alive after he's just killed your dog.

31:07

The cat is not formally

31:07

overruled yet. Right? So,

31:11

like, that entire line should have

31:13

exactly as you just say a yet on it.

31:15

I agree that nothing in this court's

31:17

opinion should be understood to cast doubt on these precedents

31:19

that do not concern abortion. And that's the problem

31:22

because I think we should be casting doubt

31:23

on these other precedents, too. Right.

31:26

But I think in terms of what it does

31:29

to folks in the position of translating the court's

31:31

work to the public,

31:32

I think that what you said a couple minutes ago,

31:34

Ellie, is really profound and accurate. And this

31:36

line is one that I was asked about. I'm sure you all

31:38

were as well again and again the next day,

31:40

which is, but Thomas says that everything

31:43

else is safe and in full context

31:45

that's not remotely true, but it's

31:48

an easy line to pluck out and sort

31:50

of hold out to the public as providing

31:52

comfort about what this opinion actually encompasses. And

31:54

so I actually think it was very strategically included

31:57

by Justice Thomas. Yes.

31:59

the next line because the line you had me read first is the one

32:02

that like so let me just put this all in.

32:04

Read all the lines. All the lines. Right.

32:07

Thus, I agree that nothing in the court's opinion

32:09

should be understood to cast doubt on the precedents

32:11

that do not concern abortion.

32:13

For that reason, in future

32:15

cases, we should reconsider all

32:17

of this court's substantive due process. President,

32:20

including

32:20

That's what I said. It

32:22

was wrong. They didn't go far enough. That's

32:24

what he's saying. He's not agreeing

32:26

with the majority. He is he is agreeing

32:28

that what the majority did. He's not saying that majority

32:31

is right. He's saying that if if

32:33

it's up to him, these precedents

32:35

would be disturbed and he is actively

32:38

shopping for cases. And this is the thing

32:40

that like like this is where I wish

32:42

I could go back to my law school professors and be like

32:45

you lied to me because they

32:47

told me in law school that judges don't

32:49

shop for cases in their opinions.

32:51

Right. And that's just who says that.

32:54

Yes. Harvard Harvard said that. Interesting.

32:58

Harvard said that. That's just not true.

33:01

And

33:02

you know, just some evidence as to

33:05

why maybe including a yet

33:07

in that sentence would have been more accurate

33:10

or the cat isn't overruled

33:12

yet is the better characterization of

33:14

this sentence. I mean, think about

33:16

what's happened in the last year. We had three or three creative,

33:18

which Kate already mentioned, which basically

33:21

distinguished slash effectively narrowed

33:24

and limited all prior cases, saying

33:27

there wasn't a license to discriminate exception

33:29

from public accommodations laws and

33:31

invited differentiation

33:32

for same sex couples

33:35

and treating them differently. You also

33:37

had students for fair admissions, which effectively

33:39

overruled all of the courts prior

33:41

cases, allowing affirmative action in

33:44

higher education. You had Sacket

33:46

versus Environmental Protection Agency, which

33:49

basically whittled away

33:51

all of the courts prior cases that said

33:53

the EPA could regulate certain kinds

33:55

of wetlands under the Clean Water Act.

33:58

And we're looking ahead to next term. in which they've got

34:01

a bunch of other cases on tap

34:03

in which they are being explicitly invited to overrule

34:05

prior cases or again, effectively

34:08

narrow or limit them.

34:09

This court doesn't care about precedent.

34:12

I don't know how else

34:14

to explain that to people. They just strip.

34:18

Ellie's laughing because Kay's holding up her shirt.

34:20

Starry decisuses for suckers. I

34:22

pulled out some of the original merch

34:24

because it felt fitting to

34:26

me. I'm saying we'd set that in 2019. And

34:30

people thought we were being hyperbolic. The shirt is like falling

34:33

apart from the wash because I've been wearing it for

34:35

years and the room is sort of catching up. Like

34:38

the Constitution, here's the start. Nobody

34:41

should be surprised by what's happening because

34:43

they were picked and appointed for

34:46

this express purpose to overturn

34:48

precedent. And that goes to

34:51

how good, quite frankly, and how accurate,

34:53

quite frankly, the Federal Society has

34:55

been at picking judges. To me, this

34:58

all goes back, this all goes back

35:00

to Anthony Kennedy and David

35:02

Studer stabbing those people in

35:04

the back.

35:05

And O'Connor. O'Connor too. O'Connor,

35:07

I mean, she made a trust. Well, no, they were always suspicious

35:09

of her, but she was like, she made sure they're like, you were

35:11

right to be really suspicious of me.

35:14

You're right, but I also think they gave O'Connor

35:16

a little bit of a pass because like, well, she was a woman.

35:18

A lady pass. Right? She was

35:20

gonna be lady. Just her silly lady brain. She was gonna lady out, right?

35:24

Exactly, she was gonna have lady brains sometimes.

35:26

But that David Studer, right? That

35:29

John Paul Stevens. Like conservatives

35:31

for 40 years made the

35:33

mistake of picking conservative

35:36

justices who actually believed

35:39

in precedent, right? Who actually believed.

35:41

And limited government. In limited government.

35:44

Who actually believed in practicality.

35:47

I wanna turn to another line. I

35:49

think this one is actually perhaps my favorite

35:52

Thomas line here because I think Clarence

35:54

Thomas is actually the only

35:56

member of the Dobbs court who

35:59

could say this.

35:59

with a straight face, in part

36:02

because of what

36:04

I think of as the epistemic authority he has

36:06

as the only African-American

36:09

on this court at the time.

36:11

So can you read this line and

36:13

then we can talk about it on the other

36:15

side?

36:16

Third, substantive due

36:18

process is often wielded to disastrous

36:21

ends. For instance, in

36:24

Dred Scott v. Sanford, the

36:26

court invoked a species of

36:29

substantive due process to announce

36:31

that Congress was powerless to

36:33

emancipate slaves brought into

36:35

the federal territories.

36:37

While Dred Scott was overruled

36:40

on the battlefields of the Civil War and

36:43

by the constitutional amendment after

36:45

Appomattox,

36:47

that overruling was purchased

36:49

at the price of a measurable human suffering.

36:52

All right. Species

36:54

of substantive due process is really doing a

36:56

lot of work here because

36:59

abortion and a taking seem

37:01

to be like very different doctrinal

37:04

strands here. So can we talk

37:06

about this, like how he's conflating these

37:08

two very distinct understandings

37:11

of substantive

37:11

due process? The Dred Scott decision

37:13

was not based on substantive due process. Number

37:16

one, substantive due process as just a

37:18

thing that we talk about was not invented

37:21

in 1852.

37:23

People didn't talk. So not only is

37:25

he talking about a thing that wasn't actually

37:28

invented at the time that he's talking

37:30

about it, the baseline reasoning

37:33

of the Dred Scott decision was not

37:35

one based on substantive due process and process

37:38

rights and all of that. Just for

37:39

clarification, the part of the

37:42

Dred Scott decision to which he is referring

37:44

is the part where the court holds that

37:46

Congress does not have the authority to

37:49

enact the Missouri Compromise, which essentially

37:52

renegotiated property rights of

37:55

slave owners. So that's the property

37:57

piece of it.

37:59

The due process rights of property owners

38:02

were apparently renegotiated with

38:04

the Missouri Compromise, but it's not

38:07

at all a substantive due process

38:09

decision.

38:10

No, you know what it is. It's an originalist

38:12

decision. Dred Scott is a

38:14

straight up originalist decision. And if you mind,

38:17

I came prepared. I would like to read the

38:19

originalist part of the Dred Scott decision,

38:21

right? Let's do

38:23

it. This is now Roger jerkface

38:25

Tanny talking. When the Constitution

38:27

was adopted, they were not regarded in

38:30

any state as members of the community which

38:32

constituted the state and were not

38:34

numbered among its people or citizens.

38:37

Consequently,

38:38

the special rights and immunities guaranteed to

38:40

citizens do not apply to them and

38:43

not being citizens within the meaning of the Constitution.

38:46

They are not entitled to sue in that character

38:48

in a court of the United States.

38:51

That is the Dred Scott

38:53

decision. And that

38:54

is a holy originalist

38:57

reading of the Constitution. What Tanny

38:59

is saying is that because the states did

39:01

not view black people as people when they

39:03

were brought here, that the court cannot

39:06

later infer people rights upon

39:08

them.

39:09

That's originalism 101. And

39:12

that's what Dred Scott is, right? So when

39:14

Thomas is saying he's they're enacting a

39:17

species of substantive due process, no,

39:19

no, no, they're enacting a species

39:21

of originalism.

39:23

Number two, it infuriates

39:25

me the way that the conservative

39:28

right tries to idle

39:30

the difference between Dred

39:33

Scott and Roe v Wade, right? For

39:36

the conservatives, they they've used for

39:38

like a generation

39:40

Dred Scott as code for

39:42

Roe v Wade, right? Because their argument,

39:44

their analysis is that these are two

39:47

morally incorrect decisions, right?

39:50

Roe v Wade viewed ruled that black

39:52

people had no rights and the white man was bound to resect.

39:55

From their perspective, Roe v Wade

39:57

views that the fetus has no right.

39:59

that the white man is bound to

40:02

respect, right? And so that's how they try to make the

40:04

connection. And it infuriates me

40:06

for two reasons. One, equating

40:08

black people to

40:11

fetuses offends me, all right? I,

40:16

as a black person, am able to eat

40:18

on my own. I don't have to leech

40:20

nutrients out of a woman's body

40:23

in order to survive because I'm a person.

40:25

I can also do things like talk and

40:28

see and wipe my own butt.

40:30

The idea that a fetus is

40:33

the same as a slave is just

40:35

meow. So, but number

40:37

two,

40:38

there is a person here in the abortion

40:41

cases, right? There is a person here when

40:43

we talk about Roe v. Wade or Planned Parenthood or

40:45

Dobbs, right? And that person is

40:47

the pregnant person.

40:50

And what Dobbs is saying, what these

40:52

people are saying, is that a pregnant

40:54

person has no rights that

40:56

the white man is bound to respect. That

40:59

is the upshot of Dobbs,

41:01

not that the fetus has no rights that they were bound to

41:03

express, but the person that for nine months,

41:06

from when you get knocked up to when you push

41:08

it out,

41:08

you have no rights that anybody

41:11

has to listen to.

41:12

That's what Dobbs says. And that's

41:14

why the connection to Dred Scott is

41:16

infuriating because they get it entirely wrong.

41:19

The Dobbs court says they are just simply ill-equipped

41:21

to assess these rights of these so-called people

41:24

women. You are referring to- Are

41:26

they people? Are they people? That's

41:29

why I said so-called. That's why I said so-called. I

41:31

think we're gonna have to have a Daubert hearing about it. Yeah.

41:33

Honestly. Who's

41:35

the expert though, right? Samuel

41:38

Alito. Samuel Alito is the expert.

41:42

So I just wanted to say two things. One is the

41:44

passage from Dred Scott, you read Ellie about

41:47

how the court said

41:49

black people did not have rights that white people

41:51

were bound to respect. That wasn't even about

41:53

the property rights aspect of Dred Scott

41:55

at all. That was about the court's initial

41:58

holding that.

42:00

Black people were not citizens for

42:02

purposes of the Article III. Exactly.

42:05

And therefore could not sue in federal

42:07

court, and the federal courts did not have diversity jurisdiction

42:10

over their cases. So that didn't even involve

42:12

this species of substantive due process,

42:15

like Ticking's S claim. But then

42:17

second is, Melissa, when you were introducing

42:19

this segment, you mentioned that Justice Thomas is

42:21

the only person with the epistemic authority to make this claim.

42:24

And yet, and yet, people before

42:26

him, other justices had

42:28

tried to, namely Justice Scalia, who

42:31

also analogized the Supreme Court's decision

42:33

in Planned Parenthood versus Casey, to

42:35

Dred Scott when he recited some

42:37

of the court's reasoning and then said, there

42:39

comes vividly to mind a portrait

42:41

that hangs in the Harvard Law School. Broadway's

42:44

Harvard. Roger Danny.

42:47

Like, why? What

42:48

the fuck is going on at Harvard Law School? What

42:50

is going on? What's happening?

42:54

I mean, I'm just happy I got out alive, man. The life is... Can

42:57

I just say one thing in defense of Justice Scalia?

43:00

Let me just say, like, he doesn't go nearly

43:02

as far as Justice Thomas does here. I

43:04

mean, like Justice Thomas literally is doing

43:06

Civil War reenactments. Like, we're

43:09

on Appomattox. There's a measurable human

43:11

loss and human suffering. I mean, he's conjuring

43:15

the battlefields of the Civil War

43:17

in much the same way at his confirmation.

43:20

He conjured the image of

43:22

black men being lynched. I don't

43:24

think anyone has ever gone

43:27

that far in their recitation

43:30

of Dred Scott, and certainly not Scalia

43:32

who mentions it, but links it to this portrait

43:35

of Roger Taney that hangs in Harvard Law School,

43:37

but doesn't go any further, in part because

43:39

I don't think he can in the way that Justice

43:41

Thomas can.

43:42

Thomas has often in his

43:45

career tried to

43:48

trade on the

43:52

racial pain

43:54

of our ancestors

43:56

while doing everything he

43:58

can to... to put

44:01

that pain

44:02

forward into the future. He's always tried

44:04

to protect himself

44:06

through his blackness while

44:08

doing everything he can to keep

44:11

other black folks down. It's one of the more,

44:13

I think, terrible parts of

44:16

his career and his public life.

44:19

He does this as a matter of course, though. I'm used

44:21

to it, I guess, is the best way I can put it, right? Like,

44:23

of course, Thomas is the one who wants

44:25

to get out there and be like, oh, look at what

44:27

happened in this game, it's so bad.

44:30

And that's why women should have no rights. Like,

44:33

he does it so seamlessly and he does it so easily.

44:35

And he's done

44:36

it for his entire career. His entire public

44:38

career, you know? It's one of the reasons why

44:41

that man can't stand Katanji

44:44

Brown Jackson,

44:45

right? That's why that man hates Katanji

44:48

Brown Jackson because Katanji Brown Jackson is

44:50

basically sitting there kind of, jay, I'm saying

44:52

anything.

44:53

When you are the only black person in

44:56

an all-white environment, you have

44:58

license to say

45:00

some stuff without anybody calling

45:02

you out for it, right, like speaking of Harvard Law

45:04

School, right? Like, as a person who was often in

45:07

the only black person in the room, right? You

45:09

can have some fun with white people in

45:11

terms of speaking from what

45:13

they assumed was your authority, right? So one

45:15

time, this is not something I'm proud of, but I'm

45:17

talking about it on the podcast, so that's really great. You

45:20

know, so I'm drinking a bunch of white friends

45:22

and they're bothering me,

45:23

right? So I do a joke and

45:26

I say to them, you know, most

45:28

black people poop standing up.

45:31

And these white folks are like, really?

45:35

I was like, yay! Why do they like this? Like,

45:37

why are you like this? So I was

45:39

drinking and annoyed by these

45:41

people, right? And like, for

45:43

five minutes, I just had them going. That's

45:46

Clarence Thomas. Clarence Thomas is that

45:48

joke only for 31 years on

45:50

the Supreme Court. And with catastrophic

45:52

consequences for the nation. For

45:54

like, actual black people, exactly. That's

45:57

Clarence Thomas. And Kataki Brown

45:59

Jackson just... doesn't let him get away with

46:01

it. Which is nice. The

46:03

last point though about this overrule

46:07

than the battlefields of the Civil War, right?

46:11

Was it really? Because

46:15

as far as I remember,

46:17

correct me if I'm wrong, but there was a war,

46:19

good guys won, and for

46:22

like 13 years or so,

46:24

the good guys committed to

46:26

keeping their foot on the neck of their racist

46:28

cousins so that there could

46:30

be freedom

46:31

in the South. And then they

46:33

got sick of it. Then the good white people, the good

46:36

white folks got sick of reconstruction,

46:38

got sick of militarily dominating

46:41

the South. They went back to their

46:43

racist societies in the North. And

46:46

the South immediately

46:48

reinstituted basically

46:51

everything that Tanny says in

46:53

the Dred Scott decision. Immediately

46:55

went back to black people have no

46:58

rights the white man is bound to respect, immediately.

47:00

Originalism doesn't have to be faithful to actual history,

47:02

Ellie. I think that's clear by now.

47:04

So Ellie, thank you so much for helping distill

47:06

this concurrence as truly only you could. There

47:09

is a reason you're a strict scrutiny super guest and we're grateful

47:11

for the time. So thank you. Thank you so much for having

47:14

me. And now here because

47:16

he is willing to humor us for his first

47:18

appearance on strict scrutiny as a guest

47:20

that is excluding crossover episodes coming

47:22

to us beam down from the mothership that is

47:25

crooked media is one of the hosts of Pods Save America,

47:27

John Favreau. John, welcome

47:29

to the pod. Thanks for having me. And thanks

47:31

for asking me to play Brett Kavanaugh.

47:34

I mean, we needed somebody to play America's

47:36

favorite father of daughters, the ultimate girl

47:39

dad, the greatest feminist on the court

47:41

since RBG. So

47:43

that's what you're here to do. But

47:46

because-

47:46

Take a lot of beer in college, play a lot of beer pong.

47:50

We're not totally cruel. So we will

47:52

also allow you to join us in responding

47:54

to the lines that you are going to be reading.

47:57

And if at any point the criticism gets too much

47:59

for you.

47:59

just say, I hired

48:02

the first all-female class of law

48:04

clerks and I am a father of daughters and

48:06

then automatically no one is entitled to criticize

48:08

you.

48:09

Thank you, that is a good

48:11

out. So without further ado,

48:13

maybe you can read the first of the justices

48:16

lines. Great. The

48:19

nine unelected members of this court do

48:21

not possess the constitutional authority

48:23

to override the democratic process and

48:26

to decree either a pro-life or a pro-choice

48:28

abortion policy for all 330 million

48:30

people in the United States.

48:33

Wow, that was a really good reading.

48:36

Like I felt like he was here. I felt

48:38

that was very Brett S. That's

48:40

what I was hoping for. So

48:42

how have these lines played out? I

48:45

mean, per usual,

48:47

I think Brett really got it wrong. Don't

48:50

you think? What did he miss? Wow, I

48:52

mean this idea that this court does not possess

48:55

the constitutional authority to override

48:57

the democratic process. I mean,

49:00

this medication abortion ruling

49:02

down in Texas. Okay, not this court, but a

49:04

court and they may have something to say

49:07

about it anytime. Well, we will see. I

49:09

think in some ways we have seen some of the predictions

49:12

like in the joint dissent, which we will get

49:14

to really borne out regarding

49:16

the on the ground consequences in terms of

49:19

suffering and medical

49:21

crisis and dreams dashed and

49:23

all the other things that the joint dissenters said would

49:25

come to pass as a result of this court of ruling

49:27

of Roe that we've already seen. I actually think

49:29

because the court still has

49:32

to come back to a big national

49:34

abortion case, which may be the medication abortion

49:36

case, we will see if the court decides

49:39

to side with this lunatic challenge

49:41

to medication abortion,

49:42

which it didn't do on the shadow

49:44

docket, but who knows if they actually

49:47

hear full arguments on this case and

49:49

decide to somehow either curtail or limit the availability

49:51

of mephapristone,

49:52

then obviously this

49:55

will give the lie to that suggestion

49:57

that the court is not gonna set nationwide abortion policy.

50:00

But even with what the court has done so far,

50:03

basically suggesting we're going to let the states

50:05

just decide for themselves, but then essentially

50:08

put in place all kinds

50:10

of obstacles to people in the states

50:12

actually deciding for themselves what

50:14

abortion policy is going to look like. It's

50:16

hard to take this very seriously, but I think it is to

50:19

be seen what the Supreme Court

50:20

is going to do with its next

50:22

abortion. Laelia, do you agree with me

50:24

that I think we've already seen some inklings

50:26

that this court is not as studiously

50:29

neutral as Brett Kavanaugh would have

50:31

us believe?

50:32

I think there has been some evidence to

50:34

that. Which pieces of evidence do you have

50:36

in mind, Melissa? Well, I want to hear your evidence

50:38

first. Show me your evidence, Laelia. One

50:40

is the writings, of course, of Samuel

50:42

Alito, not just in the US reports

50:44

in which he was bitching about how the government

50:46

had not promised to enforce a ruling

50:49

that would be a judicially ordered ban on

50:51

the most common method of abortion in the United States,

50:54

which is the case of the law of abortion abortion,

50:56

but also what he has written in, frankly, the pages of the Wall Street Journal

50:58

and told to them as well in which he has criticized

51:02

efforts

51:02

to criticize the court for what they are doing and

51:04

announced that he actually didn't

51:06

know how to pronounce Bifepristone despite going along with

51:08

that judicially ordered

51:11

medication abortion ban. I also just think even if we are not going

51:13

to consider extrajudicial writings

51:15

or talks, like this

51:17

court in the context of guns has

51:19

shown precious little attention

51:21

to being neutral in

51:24

which democratic processes have

51:26

apparently played out and worked

51:28

themselves in favor of gun control

51:30

legislation. I mean, so this idea

51:32

that the court is just neutral and not playing

51:34

politics is ridiculous.

51:37

He knows it's ridiculous, but he continues

51:40

to say it because that's what he

51:42

does. So, John, back

51:44

to you. Yes. Studiously

51:47

neutral. Brett Kavanaugh has

51:49

more to say about how the court

51:52

has to be studiously neutral. So why

51:54

don't you read the next line?

51:56

The court's decision today properly returns

51:58

the court to a position of neutral.

51:59

and restores the people's authority

52:02

to address the issue of abortion through the processes

52:04

of democratic self-government established

52:07

by the Constitution.

52:08

Other abortion-related legal questions may

52:10

emerge in the future,

52:12

but this court will no longer decide the

52:14

fundamental question of whether abortion

52:16

must be allowed throughout the United States through 6

52:19

weeks or 12 weeks or 15 weeks or 24 weeks or some other

52:21

line.

52:25

This is another example where I fundamentally

52:28

wonder whether he is high on his own

52:30

supply, and like he is just so

52:32

sold on everything the conservative legal movement

52:35

has told him because already in the

52:37

last year, there are a bunch of cases

52:39

that tee up the question about what

52:41

sort of restrictions on abortion are permitted.

52:44

There are lawsuits under MTALA, the federal

52:47

law, that requires emergency care for people

52:49

in labor, and there are conflicting federal

52:52

judicial decisions about when and

52:54

whether MTALA

52:55

basically contravenes or prohibits

52:57

the enforcement of these state restrictions. There

53:00

are also state restrictions potentially

53:02

in conflict with the FDA's approval of Mifepristone.

53:04

Again, there are multiple cases raising these

53:07

issues as well, and those cases

53:09

are going to tee up the permissibility of different

53:11

methods of abortion at different points throughout the state. So, at different points

53:13

throughout pregnancy. So, that's not

53:16

going anywhere. John, obviously

53:18

you are a Politico, and so kind of

53:20

a political question that I would love to pose to

53:22

you is, what do you think? So, if

53:25

we're right about how this all played out, which is that John

53:27

Roberts tried to convince Brett

53:29

Kavanaugh to do something much more measured

53:32

and allow Mississippi to enforce this ban,

53:34

but not over Rule Row, and maybe

53:36

it seemed like it was kind of working, and maybe the leak

53:39

of the opinion changed

53:39

the trajectory, maybe not, who knows. But

53:42

in any event, Kavanaugh did not go along with the

53:44

Roberts approach. He joined the Alito opinion

53:46

in full, but then wrote this separate missive,

53:48

whatever it was. The cap current.

53:49

Do you think if you're... The

53:51

cap current. The cap current is right. And

53:54

then obviously we

53:55

saw the Democrats' electoral fortunes

53:58

really buoyed in the midterm elections. at

54:00

least in part as a result of Dobbs and going

54:02

into 2014. Despite their best efforts to

54:04

have it not gooey, their electoral

54:06

fortunes, it did it bad.

54:09

What do you think Brett Kavanaugh is thinking right now?

54:11

Do you imagine there's any buyer's remorse in

54:14

the court having gone as far and as fast as it did

54:16

here if it actually has hurt

54:18

the Republican party? Do

54:20

you long-term think that that's going to prove

54:23

true in the 2024 election cycle as well? We're

54:26

seeing Donald Trump continuing to tout having

54:29

put

54:29

on the court the justices who overturned

54:32

Roe despite the unpopularity

54:34

of that. I guess just both

54:36

a year out where we think Kavanaugh might

54:38

be, but also how likely Dobbs

54:41

is to continue to be a

54:42

big electoral issue going into 2024. I

54:46

hesitate to put myself in the mind of Brett

54:48

Kavanaugh despite the fact that I am reading his

54:53

words on this episode. But

54:55

no, if you would ask me about like Alito

54:57

or Thomas, I'd say no, there's probably no buyers remorse,

55:00

but Kavanaugh,

55:01

because he is a fundamentally

55:03

Republican operative or was in a past

55:06

life probably still is. Yeah,

55:08

I think he's looking at the politics and wondering, maybe

55:11

this was more of a backlash than I expected. I

55:13

mean, I think Trump is interesting

55:15

because he's out there bragging

55:17

about putting these justices on the Supreme

55:20

Court, but at the same time you

55:22

see him sort of walking away from

55:24

the six week ban or a little trying to dance

55:26

around it. And

55:30

he's got better political instincts than Ron

55:32

DeSantis and Mike

55:34

Pence in thinking

55:37

that this could be a problem

55:39

in a general election. And I think what's interesting

55:41

with the politics of this is you

55:45

see a bigger backlash in the states where

55:48

there are bans now. And so

55:50

where people are seeing their rights

55:52

taken away, even in the deepest

55:55

red states like we saw in Kansas, this

55:57

is an issue. And I do think that.

55:59

any Democrat running in 2024,

56:02

particularly in a place where abortion rights

56:04

are at risk, which will be everywhere.

56:08

If we get a Republican president

56:11

and a Republican Congress and they're go for a national

56:13

ban, then you'll see it become an

56:15

issue. And I think Democrats should, I mean, what Republicans

56:18

are trying to do right now, and you hear this with everyone

56:20

from DeSantis to everyone

56:22

else, is saying like, oh, well, national

56:25

ban, I just don't think it'll ever come

56:27

to my desk. And

56:29

no one is pressing them on it. Like, I mean,

56:31

even Chris Christie said that to love it in the interview

56:34

too. He was like, I don't think we'll get a

56:36

national ban, but they're not willing to

56:38

say, they'll either say no to a

56:40

national ban or they'll prove it because

56:42

they know, of course they will say yes

56:44

to a national ban if it gets through Congress. But Democrats

56:47

should forget about their half answers.

56:49

We should just say that if Republicans win,

56:51

if they get control of all three branches, there will

56:54

be a national abortion ban.

56:56

I was just going to say, John, like that was an awful

56:58

lot of thoughts for Brett Kavanaugh,

57:01

but I appreciate you were really straddling both

57:03

roles there. But

57:06

second is, I think asking them,

57:08

what are you going to do if a national abortion ban

57:10

comes to your desk is the wrong question because

57:13

we have seen that they are actually willing to

57:15

attempt to restrict abortion without

57:17

passing laws. And so another

57:19

example, we talked about the medication abortion lawsuit

57:22

is the possibility that they will attempt to enforce

57:24

the Comstock Act, which is the Victorian

57:26

era law that is on the books

57:29

that prohibits the distribution of

57:31

licentious materials. And there

57:33

are theories, including one in the medication

57:35

abortion case, that actually in the

57:37

wake of Dobbs, that allows

57:40

the federal government to prohibit and

57:42

criminally prohibit the distribution

57:45

of medication abortion. And so you could have

57:47

a Republican president and Republican attorney

57:49

general effectively enforcing

57:52

a kind of federal abortion ban without

57:54

the Republicans in Congress ever having

57:56

to pass a law or the president

57:58

signed one. real risk that it

58:01

feels like people just aren't talking about

58:03

in this lead up to the presidential election.

58:06

That'd be a good debate question for those Republicans

58:08

in the first debate. It would. I don't know

58:10

who the moderator is. It's probably like Sidney Powell or

58:12

something.

58:13

She might be busy, depending what Jack

58:15

Smith does next. Oh, God. Speaking

58:19

of debates, I think this might

58:21

be a good time to play a clip from the 2020 debate

58:24

when candidate Trump had a lot

58:26

to say about his new

58:28

nominee, then

58:30

judge, now justice, Amy Coney Barrett,

58:33

and the impact of abortion policy

58:35

on that election.

58:37

The point is that the president also

58:40

is opposed to Roe v. Wade. That's

58:42

on the ballot as well in the court, in the

58:44

court. And so that's also

58:46

at stake right now. And so the election

58:49

is all right now. You don't know it's on the ballot. Why

58:51

is it on the ballot? Why

58:53

is it on the ballot? It's on

58:56

the ballot in the court. I don't think so. In the

58:58

court. There's nothing happening there. Donald,

59:00

would you just require me? And you don't know her view

59:02

on Roe v. Wade. I don't know her view.

59:05

How does that strike you now, John, in

59:07

the rearview mirror? I think

59:09

we have, those of us on

59:11

this podcast have long believed

59:14

that what Republican candidates say about

59:17

justices that they may or may not nominate

59:20

and how they're just going to be calling balls and

59:22

strikes and neutral and don't have

59:24

any political views is bullshit. But

59:27

I think

59:28

after the last election, we may

59:30

have put that to rest for, I'd say

59:32

a majority of the American people now.

59:34

I am certainly hoping so. But I think that this

59:36

is another reminder about how to take the statements

59:38

about what they would do with a federal abortion

59:40

ban, you know, hypothetical one or not. Right.

59:43

In 2020, after literally almost four decades

59:46

of Republican presidents campaigning on appointing

59:48

justices who would overrule Roe at the

59:50

moment, this was in their grasp. All of a sudden

59:52

they're like, what are you talking about? We

59:54

have no idea what the justices were appointing

59:57

are going to do. Who is to say? Who is

59:59

to know what?

59:59

as Amy Coney Barrett is going to do. And then

1:00:02

what do you know, it happens. I don't know

1:00:04

how you do, if you're in the Senate, like I don't

1:00:06

know how you approach the next hearing,

1:00:10

like the next confirmation hearing, knowing

1:00:12

that so many lies have been told,

1:00:15

whether they're lies, you know, even if they're lies of omission

1:00:18

by previous nominees.

1:00:20

I mean, if you're Ted Cruz, you find a children's

1:00:23

book and you put it on a billboard, and then

1:00:25

you talk about anti-racist babies. And

1:00:27

then if you're Josh Hawley, you go curious

1:00:30

and start screaming about pedophiles.

1:00:33

Yes. Yeah. Yeah, that's

1:00:35

right. John, we're gonna ask you to maybe transition,

1:00:38

or sorry, Justice Kavanaugh, we're gonna ask you to

1:00:40

transition to the next quote if you're ready.

1:00:42

Some of the other abortion related legal questions

1:00:45

raised by today's decision are not especially

1:00:47

difficult as a constitutional matter. For

1:00:50

example,

1:00:50

may a state bar a resident of that state

1:00:53

from traveling to another state to obtain an

1:00:55

abortion? In my view, the

1:00:57

answer is no, based on the constitutional

1:00:59

right to interstate travel. Easy

1:01:01

peasy lemon squeezy, not a big deal.

1:01:06

This just like encapsulates everything that is so enraging

1:01:08

about Brett Kavanaugh, because on the one hand, like that's

1:01:10

helpful. He wants to assure everyone.

1:01:13

That's great, we could travel. This is literally cut and

1:01:15

pasted from an emmanuals on constitutional

1:01:18

law. Like this is from a commercial law. Because

1:01:21

he says, because it is the case that we all

1:01:23

think, and it seems right, there should be a constitutional

1:01:26

right to interstate travel. But the

1:01:28

avowed originalists and textualists on

1:01:30

this court are supposed

1:01:31

to care about what's actually in the

1:01:33

written constitution. And it turns out you can scour

1:01:36

the words of the constitution. And in fact, there is

1:01:38

no explicit

1:01:38

protection for the right to travel per

1:01:40

se. It has been understood as emanating

1:01:43

from various parts of the constitution, much like the

1:01:45

right to privacy and to terminate a pregnancy,

1:01:47

was once understood to flow from

1:01:49

various provisions in the constitution, though

1:01:51

abortion itself appears nowhere.

1:01:53

So he's just kind of like casually

1:01:55

deploying this contested constitutional

1:01:58

claim, as if it's very easy and obvious, but he's...

1:01:59

I'm hoping no one will notice and that everyone will like him. He

1:02:02

does hedge Kate. He says in his view,

1:02:04

he's going to be the lone vote for this. He

1:02:08

will be principled and he will uphold the

1:02:10

constitutional right to travel.

1:02:12

If I was designing ads

1:02:15

and arguments for the

1:02:17

Democrats in 2024, some of these very

1:02:19

sad,

1:02:22

horrific, extreme examples

1:02:25

that we're hearing about that like in

1:02:27

Texas, in Florida, the right of

1:02:29

people who have unviable pregnancies

1:02:32

that are forced to give birth anyway and

1:02:35

women's health being at risk. It

1:02:38

is shocking and I think it's sort of, you

1:02:41

see them pop up in like local news stories

1:02:43

all the time, but they kind of go under the radar

1:02:45

after that. And I think that reminding people

1:02:48

of these extreme examples,

1:02:50

not just because they're the only injustice, but

1:02:53

because I think that that will hit most

1:02:55

voters in a real serious way is

1:02:58

going to be important because these

1:03:00

are like the kind of things that you hear

1:03:03

in

1:03:04

apolitical settings, right? Like with people

1:03:06

who aren't news junkies and politics junkies,

1:03:08

they just like, and people who might be more

1:03:11

conservative, right? They just talk about a story they

1:03:13

heard about someone who almost died because they were forced

1:03:15

to give birth. And

1:03:18

I think the Democrats have to make that a central

1:03:20

part of the campaign in 2024.

1:03:23

I mean, I don't think he had any more big thoughts. No,

1:03:25

I just, no, that's it. I

1:03:27

got it. The words to thought ratio

1:03:29

was pretty. I

1:03:34

just got to go. I just got to go be a father to my

1:03:36

daughters. Girl, dad, you

1:03:38

have to probably go coach it. Talk

1:03:40

to my law clerks.

1:03:42

Thank

1:03:44

you for stopping by. Thank you guys. This

1:03:47

was really

1:03:47

fun. Appreciate it.

1:03:52

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So

1:07:37

listeners, we have saved the

1:07:39

best for last.

1:07:41

And

1:07:46

that of course is The Joint Descent, which

1:07:48

was jointly written by the Quartz

1:07:50

Cassandras, who I should

1:07:52

say, then the Quartz Cassandras,

1:07:54

because they've definitely been upped

1:07:57

in their number. But these Cassandras

1:07:59

definitely.

1:07:59

saw what was going to happen. And

1:08:02

of course, we know them as Sonia Sotomayor,

1:08:04

Elena Kagan, and Stephen

1:08:06

Breyer.

1:08:07

And we are delighted to be joined for this segment

1:08:09

by some very special people who will be playing

1:08:11

the joint dissenters, the best role in

1:08:13

this retrospective, trust us, and

1:08:16

also discussing the last year through

1:08:18

their eyes. That is the host of the

1:08:20

Betches Up podcast, Amanda Duberman,

1:08:22

Elise Morales, and Millie Tamarez. Welcome to

1:08:24

the show. Hello. We're

1:08:27

thrilled. I have a joke. I think it's a very

1:08:29

hackneyed joke, but I have a feeling that guests have

1:08:31

already made it. But it is that

1:08:33

me being on this podcast might be the longest my husband

1:08:35

ever listens to me.

1:08:37

No one has made that joke.

1:08:40

Nobody has. You win it.

1:08:42

That's you. Amanda's husband's famously

1:08:45

a lawyer, and he loves it. Yes,

1:08:48

he is Big Walk Ken. Big Walk

1:08:50

Ken. He

1:08:52

is K'nuff. Letting things go. He's just

1:08:55

Ken, your Barbie. Exactly.

1:08:58

Big Walk

1:08:59

Ken, liberal politics Barbie. Well, we are, I think,

1:09:01

even more excited than Big Walk Ken's

1:09:04

husband is to have you on the podcast. Leah and Melissa had

1:09:06

a blast recording with you all on your podcast

1:09:08

earlier in the summer, and I was so bummed that

1:09:11

I couldn't

1:09:11

be there. But we all knew we needed to get you back and get you

1:09:13

on our show ASAP. So let's do it.

1:09:16

Yes. First, very important threshold

1:09:18

question. Which justice in the Dobbs

1:09:21

majority, AKA

1:09:23

the Mojo Dojo Casa House court, has

1:09:26

the biggest Ken energy or

1:09:28

Ken-er-gy?

1:09:30

Oh, I feel like Brett.

1:09:34

I mean, just the name Brett is

1:09:36

a version of Ken in a way. I

1:09:39

was going to go with Sam Alito just from plastic.

1:09:41

Yeah, I feel like, OK, this

1:09:44

is where we just at. I feel

1:09:46

like pre-Kensurrection,

1:09:49

I think, was Brett

1:09:52

Kavanaugh for sure. His

1:09:54

job is beach. He's all about vibes.

1:09:57

Barbie, Barbie, look at me. Look at me. Look

1:09:59

at me. the

1:10:00

emotionality, the crying. I

1:10:02

think his job is

1:10:02

to be a make coat. No, that's post.

1:10:05

We're talking pre. Yeah, no, no,

1:10:07

no. Yeah, pre-cancer action.

1:10:10

Post the sinister,

1:10:13

the horses on TV. It's

1:10:16

given Mr. Thomas for me. I think it's

1:10:18

given Gorsuch as you said that. This

1:10:20

like, rocking whale. You know Gorsuch

1:10:22

would never wear a make coat. No, but

1:10:25

the horses somehow I feel like. Sure.

1:10:28

The horses, yeah. I'm just like the sinister.

1:10:30

It's only because he's from Colorado. Plotting.

1:10:33

The listen to

1:10:36

me play guitar for four hours is

1:10:38

giving book, is giving

1:10:40

by my book. That's like

1:10:42

really, really weird and long. These

1:10:45

are great answers. Spoiler alert. I

1:10:48

do think the Simu Liu can

1:10:50

is very definitely Sam Alito here,

1:10:52

don't you think?

1:10:53

Yes. I am simply disturbed

1:10:55

we have so many options because it is

1:10:58

mainly men. I

1:11:00

mean, that's the world in which

1:11:03

we live, right? We don't live

1:11:05

in Barbie land. We live in the real world.

1:11:07

So back to our original programming.

1:11:10

Now we would love for you to share a

1:11:12

line from the descent and then we can all debrief

1:11:15

about it. Talk about how it's aged over

1:11:18

the last year, whether it still has that

1:11:20

Kennergy

1:11:21

or actually Barbie energy. Yeah,

1:11:24

Barbie energy. I

1:11:26

guess I'll start. So whatever

1:11:29

the exact scope of the coming laws,

1:11:32

one result of today's decision is certain.

1:11:34

The curtailment of women's rights and

1:11:37

of their status as

1:11:38

free and equal citizens. It

1:11:40

says that from the very moment of fertilization,

1:11:44

a woman has no rights to speak of.

1:11:47

10 out of 10. That checked. No, no. Yeah,

1:11:51

unfortunately holds up, regrettably.

1:11:55

It's giving Oklahoma, Arkansas, a

1:11:58

lot of places really.

1:11:59

Texas. had put in place a bunch

1:12:01

of the scariest laws ahead

1:12:04

of time, but it

1:12:06

is still terrifying to

1:12:08

see what women have had to go

1:12:10

through in Texas. Yeah,

1:12:12

it feels like a year out to see

1:12:14

whatever the exact scope of the laws and

1:12:16

to now know what that scope is, is pretty disturbing

1:12:19

and nauseating. Well, because

1:12:22

it's not even women, it's

1:12:24

like anybody who even helps

1:12:26

a woman who sends her a

1:12:29

Facebook message, even

1:12:32

Facebook, meta,

1:12:38

you know what I mean, doesn't have rights.

1:12:40

In terms of a year later,

1:12:42

kind of what we have seen playing

1:12:44

out on the ground, and just how

1:12:48

sort of fully the joint dissenters

1:12:51

predictions have been borne out, we

1:12:53

thought it would be useful to play a couple

1:12:55

of clips from the Zorowski trial

1:12:58

that is unfolding in Texas state court right

1:13:00

now. And that's the case seeking an injunction

1:13:03

barring the enforcement of laws that do not

1:13:05

allow doctors to provide abortion care when

1:13:07

such care is medically necessary

1:13:09

in the doctor's judgment. And there has been

1:13:11

just some unbelievably wrenching testimony

1:13:14

from the plaintiffs and physicians in

1:13:16

the case. And in case people

1:13:18

haven't been following it closely, we thought we'd use this opportunity

1:13:21

to play some excerpts.

1:13:23

I felt like my

1:13:25

pregnancy was not

1:13:27

my own, that it belonged

1:13:29

to the state, because I

1:13:32

no longer had a choice of what

1:13:34

I could do. I felt

1:13:36

abandoned. I

1:13:40

couldn't believe that after spending my

1:13:42

entire life in this state, being

1:13:45

a sixth generation Texan, practicing

1:13:48

medicine in this state, that the

1:13:53

state had completely turned their backs on me. And

1:13:56

for them, my only

1:13:59

choice. was to continue the pregnancy?

1:14:02

I mean, these are really the worst case scenarios,

1:14:05

I feel like women were warning of. Elise used to

1:14:07

say something on the podcast, you know, for years before

1:14:09

this where, you know, eventually there

1:14:11

will be a name who is kind of the first woman,

1:14:14

first person that we all acknowledge died as

1:14:16

a result of these. I wonder if it's happened

1:14:18

already. But like, I

1:14:20

mean, the stories that you hear, I mean, a woman, like, she

1:14:23

was so overcome by what happened to her that

1:14:25

she vomited on the stand. I mean, Amanda

1:14:27

Zorowski has had to unpack her

1:14:30

deepest trauma over and over and over

1:14:32

again. And

1:14:33

I think, you know, when we knew all of the possibilities

1:14:36

from this law of how it would affect people, something that, you

1:14:39

know, I definitely didn't think of as much as just how much they

1:14:41

were going to have to re-traumatize themselves over and over

1:14:43

and over again. And just to look back on, like,

1:14:45

the year that somebody like Amanda Zorowski

1:14:47

has had, it's just devastating

1:14:49

and sickening and nobody should have to go

1:14:51

through that and then be like the spokesperson

1:14:53

for it.

1:14:54

Yeah. I mean, it seems extremely

1:14:57

unfair and just thinking

1:14:59

about how the majority

1:15:02

of people in this country

1:15:04

who make these laws, like,

1:15:07

have never had to go through it even any

1:15:09

remote, like anything remotely, like,

1:15:12

don't understand, like, women's care. Like, a

1:15:15

lot of these people, especially like legislators

1:15:17

in Texas, like, famously don't know

1:15:19

how long a period lasts or that it

1:15:21

can last different.

1:15:24

And the fact that, like, people

1:15:26

have to re-traumatize themselves to

1:15:28

share for people to

1:15:30

have some modicum of compassion or

1:15:32

understanding of how their

1:15:35

legislation affects, it's just really

1:15:37

sickening. Yeah.

1:15:40

For me, it's like when I

1:15:42

hear these clips and I hear

1:15:44

these women, again, having to trot

1:15:47

out their personal traumas,

1:15:50

for a group of people who honestly

1:15:53

don't

1:15:54

give a shit. Like, I remember in the first

1:15:57

instance of this, like, Amanda Zorowski was

1:15:59

testifying before calling. Congress, Ted Cruz doesn't even show

1:16:01

up. Like these are people

1:16:04

who- He was in Cancun, Elise. Yeah,

1:16:06

well- The Ritz Carlton waits for no one.

1:16:09

Yeah, well, Snowball

1:16:11

was there. You

1:16:14

remember his dog. Justice for Snowball.

1:16:16

Justice for Snowball. Don't drag Snowball's

1:16:18

name in- I'm saying Snowball showed. Snowball

1:16:22

is being held accountable. But

1:16:26

it is like, that's what it, I feel

1:16:28

like it goes into the legacy of like,

1:16:31

taking it back to like Christine Blasey Ford,

1:16:33

where like women have to come out and

1:16:37

say, talk about the worst moments

1:16:39

of their life before a panel of

1:16:41

just like uncaring individuals,

1:16:46

even going back to as far as like Anita Hill, and

1:16:48

then maybe in like 20, 30 years, we'll

1:16:50

be like, wow, she really did that. I mean,

1:16:52

obviously we here can acknowledge it, but

1:16:54

like it's such a long

1:16:57

game for these women to actually be recognized

1:17:00

for like the bravery of what they're doing

1:17:02

and what they're saying. And

1:17:05

it's so frustrating to see them

1:17:07

have to do this for a group

1:17:09

of people that didn't even care to like,

1:17:13

consult doctors before writing

1:17:15

their laws about a medical procedure.

1:17:17

People who like for them, it's about political

1:17:20

points. It's not about the

1:17:22

reality of what women have to go through as

1:17:24

a result of the stuff they're putting into place.

1:17:27

Well, and it just goes to the first thing of like,

1:17:30

women are not free and equal citizens,

1:17:32

you know, they don't care. It was something that you

1:17:34

said earlier just about, you know, the lack

1:17:36

of representation in some of these institutions

1:17:40

that are making decisions about, you

1:17:42

know, whether a pregnancy will be continued or whether

1:17:44

it won't be institutions that have no medical

1:17:47

training to speak of, but Kate and

1:17:49

I have a paper where, you know, we note that in the States

1:17:51

with the most draconian abortion laws,

1:17:55

there is an over-representation of men in the legislature.

1:17:57

So men are passing these laws

1:17:59

and. In jurisdictions where women are

1:18:01

better represented, there are better outcomes.

1:18:04

Laws that are more favorable have

1:18:06

exceptions, maybe don't ban

1:18:08

abortion entirely. And there's

1:18:11

something so perverse about that. I mean, when you think

1:18:13

about all of the reasons why women are

1:18:15

not involved in politics, a lot

1:18:18

of it is due, I think, to

1:18:20

one,

1:18:21

not having the capital to get into

1:18:23

the race. So much is needed to become

1:18:25

a candidate, not having the time because

1:18:27

you have all of these other responsibilities often

1:18:30

to young families. And instead,

1:18:32

we have to cede this political landscape

1:18:35

to so many of these men. And then they turn around

1:18:37

and make these laws that absolutely

1:18:40

stick it to us. And just to put

1:18:42

some numbers to that, the Mississippi legislature,

1:18:44

so Mississippi is the state out of which the law

1:18:46

at issue and doves arises. That legislature

1:18:49

is like 14.9% women. It's

1:18:51

mostly men in that legislature. That's

1:18:55

lower than some other states. There's

1:18:57

nothing approaching parity. In state legislative representation,

1:19:00

the federal Congress is a little bit better. But

1:19:02

women, when they do run for office, mostly do

1:19:04

it after having kids, sometimes after their kids are out of the house.

1:19:06

And not only do you have women wildly underrepresented,

1:19:09

you have young women, radically,

1:19:11

radically underrepresented. There are very few

1:19:13

young women whose bodies are going to be the most

1:19:15

impacted by these laws who participate

1:19:18

in the making of them. It's mostly people who

1:19:20

are men and mostly old men. And then there

1:19:22

are some women, but smaller numbers, and mostly

1:19:25

much later in life. So it's just not

1:19:27

these lawmaking bodies don't

1:19:29

remotely reflect either the population at large

1:19:32

or critically the most affected segments

1:19:34

of the population. I'm sorry, can I specifically

1:19:36

remember Samuel Alito saying that we did have the

1:19:38

electoral ability to just fix you?

1:19:41

Women are not without political

1:19:43

power. Just vote. Just

1:19:46

vote. Just vote, Barbies. I

1:19:48

mean, that point that you made, Kate,

1:19:51

just

1:19:51

really reminded me of something we covered in Betches

1:19:54

a few weeks ago.

1:20:00

As we're talking about elected officials, it's like

1:20:02

if you're a young woman working

1:20:05

in a professional environment,

1:20:06

people will often say, you're

1:20:08

inexperienced or you don't know or this and

1:20:11

that. But if you're older, they're like, oh, you're

1:20:13

really out of touch. And it just seems

1:20:15

like an impossible task to be

1:20:18

a professional working woman, in

1:20:21

general, just to be a marketing exec

1:20:23

or a marketing manager. So

1:20:27

you have to wrap

1:20:30

your head around that of trying to

1:20:32

get people to vote for you to represent

1:20:34

them is its own hurdles

1:20:36

and its own things. But the results of that

1:20:39

is laws that,

1:20:41

again, it's

1:20:44

just the same people who think you can go to college

1:20:46

for $3,000 and buy

1:20:48

a house for 50 are the same

1:20:50

people who are like, just don't

1:20:53

get a board. Just like no foot.

1:20:56

Just put the baby in a box at the end. Yeah,

1:20:58

just put a baby in the box. We

1:21:00

have the boxes. Just go

1:21:01

to work and all this stuff. Mississippi,

1:21:04

it's just so funny. Mississippi, famously,

1:21:07

a great place to raise children. All their

1:21:09

government

1:21:10

support things have been taken by a

1:21:12

former football player to build a volleyball

1:21:14

stadium. Like they're for his daughter.

1:21:17

So pro women. Hello. The

1:21:20

father

1:21:20

of daughters. That's a girl

1:21:22

dad right there. So yeah, just

1:21:24

all these things

1:21:27

are just seeped in so much irony.

1:21:30

A lettuce more set should include it

1:21:32

in a remaster. There's

1:21:37

more in this joint descent and

1:21:40

these two women, Sonia Sotomayor

1:21:42

and Elena Kagan and their wing

1:21:44

man, their Allen, Stephen Breyer had a lot to

1:21:46

say. So maybe let's read the next

1:21:49

line and parse that.

1:21:50

The most striking feature of the majority

1:21:53

is the absence of any serious discussion

1:21:56

of how its ruling will affect women. A state

1:21:58

can force her to bring up a pregnancy to term even

1:22:01

at the steepest personal and familial

1:22:03

costs. Human bodies care little

1:22:05

for hopes and plans. Events can occur

1:22:08

after conception from unexpected medical

1:22:10

risks to changes in family circumstances,

1:22:13

which profoundly alter what it means

1:22:15

to carry a pregnancy to term. In

1:22:17

all these situations, women have expected

1:22:19

that they will get to decide perhaps

1:22:22

in consultation with their families or doctors,

1:22:24

but free from state interference, whether

1:22:27

to continue a pregnancy. For

1:22:29

those who will now

1:22:29

have to undergo that pregnancy, the

1:22:32

loss of Roe and Casey could be

1:22:34

disastrous.

1:22:36

What I like about this quote, or I don't

1:22:39

know if like is the right word, but what

1:22:42

jumps out at me about this particular quote

1:22:44

is that it also acknowledges that there

1:22:47

are reasons that women have abortions that

1:22:49

aren't just medical

1:22:53

emergencies. Um,

1:22:56

and that's, that's something that

1:22:58

I feel like now in the wake

1:23:00

of the decision,

1:23:02

for better or worse, there's a lot of focus on

1:23:04

like the women who never wanted to have

1:23:06

one, but because of a medical emergency

1:23:09

that arose have had to have one. But there

1:23:11

are so many other legitimate

1:23:14

reasons why women make this decision. Like

1:23:17

they, they, this says in the quote, unexpected

1:23:20

familial circumstances, financial

1:23:23

issues, you know, there, there's

1:23:25

just so many

1:23:27

personal reasons that

1:23:29

anyone chooses to have an

1:23:31

abortion. And the fact

1:23:34

that that decision might

1:23:36

be taken away, it is,

1:23:38

they use the word disastrous. Like that can have

1:23:40

a disastrous effect on a person's

1:23:43

plan for the rest of their life.

1:23:46

My favorite judge, uh, Judge

1:23:49

Lynn Tolar from formerly of divorce

1:23:51

court, uh, used to

1:23:53

say, if you're not in control of your fertility,

1:23:55

you're not in control of your life. And

1:23:58

I feel like that is something that really. struck

1:24:00

me and that's why this again just to you

1:24:03

know piggyback off what Elise was saying a

1:24:05

high percentage of people that

1:24:07

doing you know I think people see like oh

1:24:10

abortions are done by irresponsible

1:24:13

women that use that as birth control

1:24:15

and all this stuff when the number

1:24:17

is 40% of abortions

1:24:20

are you know are with women

1:24:22

who are married and there are

1:24:24

a lot of financial costs that this

1:24:26

government again

1:24:28

with the representation the representative

1:24:30

body being 80 70 years old like

1:24:35

don't know what it's like to raise a small child

1:24:37

don't understand the financial constraints or anything

1:24:40

the time

1:24:41

that it takes the hits that it takes

1:24:43

to being a woman a working woman

1:24:45

in a career and all that stuff like these

1:24:48

are all factors so it's like they're not

1:24:50

doing you know I mean we can have

1:24:51

five other podcasts about

1:24:54

the realities of being a working

1:24:56

mother in this country and like how

1:24:58

our government does not make things

1:25:01

easier for that reality

1:25:03

but then

1:25:04

you know for people want to make another option

1:25:06

it's like they've completely

1:25:09

removed that it just doesn't feel like we're

1:25:11

equal and free you know because

1:25:14

it's like we really don't

1:25:16

have

1:25:17

many options you're taking the options away

1:25:20

of what we can do and what our life

1:25:22

looks like we had a whole fight

1:25:24

over the course of the Biden administration about whether

1:25:27

we should think about child care as infrastructure

1:25:30

I mean like you know whether that was necessary to make the

1:25:32

economy work and it's worth I mean

1:25:34

you make a really great point Millie like this

1:25:36

whole pro-life ethic is nested

1:25:39

within an ethic that really abhors

1:25:41

the idea of redistribution of

1:25:43

resources in society and especially to

1:25:46

women to help them raise their families

1:25:49

I mean we were kind of talking earlier

1:25:51

legislators are writing these laws without input from doctors

1:25:54

it's almost like they don't understand what is going to happen

1:25:56

from them and some people have asked like did

1:25:58

the court the majority in Dobbs

1:25:59

anticipate what would happen in the

1:26:02

wake of doves. Did they know? Well, people

1:26:04

told them to their faces, like

1:26:06

in the pages of the US report.

1:26:09

So it's not like they didn't have this information

1:26:11

before them, right? And in fact, this

1:26:13

is, again, how it has played out. Like,

1:26:16

again, from the Zorowski trial,

1:26:19

here are two different

1:26:21

witnesses testifying about

1:26:23

pregnancies that they were carrying that were incompatible

1:26:27

with life, that they were forced

1:26:29

to carry two term, one

1:26:32

from Ashley Brandt, the other from Samantha

1:26:34

Cassiano.

1:26:35

I've had to watch Twin

1:26:38

A, Isla. To

1:26:40

tear more and more. Every

1:26:43

one. I

1:26:51

would have had to give

1:26:53

birth to an identical

1:26:55

version like daughter without

1:26:58

a skull and without a brain.

1:27:02

And I would have had to hold her

1:27:04

until she died. And

1:27:07

I can see her pain in her eyes. And

1:27:11

she told me that

1:27:14

my daughter has been diagnosed with anencephaly.

1:27:17

And that means that her skull and

1:27:19

her brain is not fully developed.

1:27:23

And that she was sorry. I didn't have any

1:27:25

option. I was pregnant. She

1:27:29

then called in a case worker. Case

1:27:31

worker came in.

1:27:33

And they handed me a paper that said, funeral

1:27:35

holds up of it. She

1:27:37

told me that I didn't have any options

1:27:39

because there was a law

1:27:41

that the

1:27:44

Texas abortion law prohibited. I

1:27:46

wasn't able to get one. So

1:27:51

I felt

1:27:55

like I was abandoned.

1:27:58

Because we think it's so important to make clear. what

1:28:00

Dobbs has unleashed. We wanted to include

1:28:02

here a very lengthy segment from

1:28:05

Amanda Zorowski. It's her opening statement

1:28:07

to the Senate Judiciary Committee where

1:28:09

she testified about her own experience

1:28:12

in Texas. So here it is and again it's long.

1:28:14

My name is Amanda Zorowski and I'm here to tell you

1:28:16

a little bit about my experience with the Texas

1:28:19

abortion bans.

1:28:20

About eight months ago I was thrilled to

1:28:22

be cruising through the second trimester of my

1:28:24

first pregnancy. I was carrying

1:28:26

our daughter Willow who had finally blissfully

1:28:29

been conceived after 18 months

1:28:31

of grueling fertility treatment.

1:28:34

My husband Josh and I were beyond thrilled.

1:28:38

Then on a sunny August day after

1:28:41

I had just finished the invite list for the baby shower

1:28:43

my sister was planning for me.

1:28:45

Everything changed. Some

1:28:47

unexpected symptoms arrived and I contacted

1:28:49

my obstetrician to be safe and was

1:28:51

surprised when I was told to come in as soon as

1:28:53

possible.

1:28:55

After a brief examination my husband and I

1:28:57

received the harrowing news that I

1:28:59

had dilated prematurely due to a condition

1:29:01

known as cervical insufficiency.

1:29:03

Soon after my membranes ruptured and we

1:29:05

were told by multiple doctors that the loss

1:29:07

of our daughter was inevitable.

1:29:11

It was clear that this was not a question of if we

1:29:13

would lose our baby. It was a question of

1:29:15

when. I

1:29:17

asked what could be done to ensure the respectful

1:29:20

passing of our baby and to protect me now

1:29:22

that my body was unprotected and vulnerable.

1:29:25

I needed an abortion. My

1:29:28

health care team was anguished as they explained there

1:29:30

was nothing they could do because of Texas's anti-abortion

1:29:32

laws the latest of which had taken effect

1:29:35

two days after my water broke.

1:29:38

It meant that even though we would with complete

1:29:41

certainty lose Willow my

1:29:43

doctors didn't feel safe enough to intervene as

1:29:45

long as her heart was beating or until I was

1:29:48

sick enough for the ethics board at the hospital to consider

1:29:51

my life at risk.

1:29:52

So all we could do is wait. I

1:29:55

cannot adequately put into words the trauma

1:29:58

and despair.

1:30:00

that comes with waiting to either lose your own

1:30:02

life, your child's, or

1:30:04

both. For days,

1:30:06

I was locked in this bizarre and

1:30:09

avoidable hell. Would

1:30:12

Willow's heart stop, or would I deteriorate

1:30:15

to the brink of death?

1:30:17

The answer arrived three long days later. In

1:30:20

a matter of minutes, I went from being physically healthy

1:30:22

to developing a raging fever and dangerously

1:30:24

low blood pressure. My husband rushed

1:30:27

me to the hospital where we soon learned I was in septic

1:30:29

shock, made evident by my violent teeth

1:30:31

chattering and incapacity to even respond

1:30:33

to questions.

1:30:35

Several hours later, after stabilizing

1:30:38

just enough to deliver our stillborn daughter,

1:30:40

my vitals crashed again.

1:30:42

In the middle of the night, I was rapidly transferred

1:30:44

to the ICU, where I would stay for three days

1:30:47

as medical professionals battled to save my life.

1:30:50

What I needed was an abortion, a standard

1:30:53

medical procedure. An abortion

1:30:55

would have prevented the unnecessary harm

1:30:57

and suffering that I endured. Not only

1:30:59

the psychological trauma that came

1:31:02

with three days of waiting, but the physical harm my

1:31:04

body suffered, the extent of which is

1:31:06

still being determined.

1:31:09

Two things I know for sure. The

1:31:11

preventable harm inflicted on me

1:31:13

has already made it harder for me to

1:31:15

get pregnant again. The

1:31:18

barbaric restrictions that are being passed across

1:31:20

the country are having real life implications

1:31:22

on real people.

1:31:24

I may have been one of the first who was affected by

1:31:27

the overturning of Roe in Texas, but I'm certainly

1:31:29

not the last. More people have been

1:31:31

and will continue to be harmed until we do

1:31:33

something about it.

1:31:35

You have the power to fix this.

1:31:38

You owe it to me and to Willow

1:31:41

and to every other person who may become pregnant

1:31:43

in this country to protect our right to

1:31:46

safe and accessible health care. Emergency

1:31:49

or no emergency?

1:31:51

No one should have to worry about the life of their

1:31:53

loved ones simply because they are with a child. Your

1:31:55

job is to protect the lives

1:31:58

of the people who elected you. not

1:32:01

endanger them. Being

1:32:03

pregnant is difficult and complicated enough. We

1:32:05

do not need you to make it even more terrifying

1:32:08

and frankly, downright dangerous

1:32:10

to create life in this country.

1:32:12

This has gone on long enough, and it's time

1:32:15

now for you to do your job, your

1:32:17

duty, and protect us. And

1:32:21

there are so many other names and stories

1:32:23

we could recount. You know, in addition

1:32:25

to the people who are testifying at the Zorowski

1:32:28

trial, there are the two women

1:32:30

in pregnant Anya Cook and Shana Smith-Cunningham,

1:32:33

who experienced the preterm,

1:32:35

pre-labor rupture of membranes that

1:32:37

required surgery in one case

1:32:40

and leading one of them, you know, to require

1:32:42

hospitalization, requiring her to be ventilated.

1:32:45

There are the individuals like Taylor Edwards

1:32:48

and others who had pregnancies

1:32:50

that were not compatible with life and were forced

1:32:52

to carry them to term. Deborah

1:32:55

Dorbert and there are just so

1:32:57

many circumstances that arose,

1:33:00

again precisely as the Joint Dissenter's suggested

1:33:03

would happen, about why

1:33:06

abortion became necessary and

1:33:08

the right decision for these women,

1:33:11

given the circumstances of their pregnancies

1:33:14

and their lives. And again,

1:33:16

like, they told this to the Dobbs majority,

1:33:19

and the Dobbs majority just appears

1:33:20

to have kind of shrug emoji'd and insisted,

1:33:23

like, we're going to do what we're going to do. It's

1:33:26

so crazy to think of any other job where, like,

1:33:28

at your like, okay, it's been a year in this position, let's

1:33:30

look at what's happened. Your decision has resulted in

1:33:32

the maiming of many women and

1:33:35

like has altered the course of many people's

1:33:37

lives in a tremendously upsetting and traumatizing

1:33:40

way. Keep at it, see you Monday.

1:33:43

Like, it's just, our Supreme Court justices is like, I

1:33:45

thought that they were,

1:33:46

aren't they supposed to consider the impact

1:33:48

of their decisions? Like, don't they have, do or

1:33:51

do they not have an obligation to think, like, if we

1:33:53

take away something, like, I think of DACA

1:33:55

too, like, if we take this away, it would have such a profound impact

1:33:57

on American society. Or are they purely, like,

1:33:59

No, it's just all you want is our

1:34:02

interpretation of the Constitution. It

1:34:04

depends who you asked. I mean, Neil Gorsuch

1:34:06

has performatively and proudly

1:34:08

proclaimed that he just doesn't care

1:34:11

and doesn't listen to people when they inform

1:34:13

him about the likely consequences of

1:34:15

his rulings. He thinks that is

1:34:17

a mark in his favor that

1:34:19

proves he's a real lawyer and

1:34:22

a real judge. Yeah,

1:34:25

I know, not exactly a great

1:34:27

circumstance. But this is

1:34:29

also what the Dábs majority characterized

1:34:32

as arguments just sounding in the national psyche

1:34:35

that they were unwilling to basically

1:34:37

consider because they were like, well,

1:34:39

sure, you're telling us this might

1:34:42

happen. Who is to say? On

1:34:44

one hand, you have the history

1:34:47

doctors testifying, the reality

1:34:49

of pregnancy. And on the other, you have

1:34:52

the pro-life movement's feelings. And

1:34:54

they would prefer to do this anyways. And

1:34:56

the court basically said we're unwilling

1:34:59

slash unable to actually resolve that. To

1:35:01

your earlier point, I think one of the things I really like about

1:35:03

the joint dissent is that it not only talks

1:35:07

about the absence of abortion as an

1:35:09

option in times when there are medical

1:35:11

exigencies, they also just note as a general

1:35:13

matter, 45% of pregnancies

1:35:16

in the United States are unplanned. Even the

1:35:18

most effective contraceptives fail.

1:35:21

And effective contraception is not

1:35:23

always universally accessible. I mean, they just

1:35:25

sort of talk like sometimes life happens. And

1:35:28

you need an option. And the

1:35:31

option isn't always to

1:35:33

bring another

1:35:33

human being into the world.

1:35:36

But you can put it in the box.

1:35:38

You can put it in the baby box. Yes, Lady Safe

1:35:40

Haven. I think you need it to be in a different

1:35:42

part of this retrospective. You're

1:35:45

giving major Lady Safe Haven

1:35:48

happy families, midget vibes. That's

1:35:51

Amy's whole thing. We didn't cast

1:35:53

anybody to play Amy because you know what Amy did

1:35:55

not do?

1:35:56

Write down her views. She did not

1:35:59

take the pen. and explain

1:36:02

why she was joining the majority in this case.

1:36:04

No, she just went along silently.

1:36:06

To an earlier point in

1:36:08

the Barbie of it all, and like

1:36:11

just using my imagination, first

1:36:15

of all, like- It's very Sam Alito

1:36:17

of you. What are you doing? I know, I know. Well,

1:36:20

a girl can dream. I just

1:36:22

can't think of a situation where

1:36:25

women are in the majority and

1:36:27

have to decide on something

1:36:29

and a procedure that affects men's lives.

1:36:31

First of all, I can't even think

1:36:33

about what procedure that would be. And

1:36:36

a procedure that would have men have

1:36:39

to in detail,

1:36:41

reshare the most traumatic

1:36:44

surgery of their lives, maybe

1:36:46

like a botch vasectomy or something like-

1:36:48

And then- Circumcision.

1:36:49

A circumcision maybe.

1:36:52

And then like have the

1:36:54

group of women say like- Pull

1:36:56

yourself up by your bootstraps. Yeah.

1:36:58

By your jockstrap. Vote

1:37:01

can. Vote. Yeah, you should vote. I just

1:37:04

can't even think about even

1:37:06

the fact that I can't- An

1:37:09

equal procedure that

1:37:12

happens only to men, and

1:37:14

that women are deciding, like I can't

1:37:17

even use my imagination for that. It

1:37:19

may be because there literally is nothing

1:37:22

equivalent for men like

1:37:25

literally gestating a whole

1:37:28

baby and then delivering it through

1:37:30

your lady parts. Like

1:37:33

there's nothing like that. So maybe

1:37:36

we can turn to the

1:37:38

final quote we wanted to end on,

1:37:40

because unlike the failings

1:37:43

of the majority to actually talk

1:37:45

about the consequences for women

1:37:47

and pregnant people, the joint dissents

1:37:50

really ended their writing

1:37:52

on that. So would one of you like to read

1:37:55

that passage? Oh, this one's

1:37:57

such a gut punch, isn't it? Yeah. sorrow

1:38:00

for this court, but more for the many millions

1:38:02

of American women who have today lost a fundamental

1:38:05

constitutional protection,

1:38:07

we dissent, and specifically these Barbies

1:38:09

and Allen dissent. And

1:38:11

not respectfully, which is not the most important thing about this,

1:38:13

but it, you know, bears noting.

1:38:16

I have a question for you all, a legal question. Is the ERA

1:38:19

the solution?

1:38:21

No, because the Equal

1:38:23

Rights Amendment prohibits discrimination on the basis

1:38:25

of sex. And earlier in the

1:38:28

Dobbs opinion, Justice Salido for five justices

1:38:30

rejected the argument that restrictions

1:38:33

on abortion constituted discrimination

1:38:36

on the basis of sex. Melissa wrote

1:38:38

a fantastic amicus brief arguing

1:38:41

that, you know, a better understanding

1:38:43

of equal protection would recognize

1:38:45

that abortion restrictions constitute a

1:38:47

denial of equal protection and discrimination on the basis

1:38:50

of sex. But even if you pass

1:38:51

the constitutional amendment that prohibits sex discrimination,

1:38:53

there are at least five justices on this court who would

1:38:56

say abortion bans restrictions on abortion,

1:38:58

don't constitute sex discrimination. I'm less pessimistic

1:39:01

about this. I think they would at least have to grapple with a serious

1:39:03

argument that there's a new constitutional basis for

1:39:05

asserting protection. And they would, I think

1:39:07

there's a very good chance they would reject it, but I don't think they can

1:39:09

do it by just citing these old 1970s cases,

1:39:11

which is what they

1:39:12

did to reject the equal protection argument

1:39:14

here. They would have to construct the argument

1:39:16

anew. And I think that it would be

1:39:19

like facially ridiculous for them to